Differences in Disclosure Between Civil and Common Law in International Arbitration
Dispute Resolution / Bahrain
Noor Al RayesPartner,Head of Litigation - Bahrain
Bradley PriceAssociate,Dispute Resolution
International arbitration often involves parties from diverse legal backgrounds, primarily from civil law and common law jurisdictions. These two legal traditions have distinct approaches to disclosure, which can significantly impact the arbitration process. This article explores these differences and the emerging converging practices that aim to bridge the gap between the two systems.
In common law jurisdictions, such as the United States and the United Kingdom, the disclosure process is extensive and is known as "discovery." The underlying principle is that all relevant documents to a dispute should be disclosed to the other party. This approach is rooted in the belief that mutual knowledge of all relevant facts is essential for proper litigation. As such, parties are obligated to produce documents that may even be unfavourable to their claims or defences.
Discovery in common law systems typically occurs after the initial pleadings and before the hearing. The process is party-driven, with presiding officer intervening only if one party fails to cooperate. The purpose of document production in common law is not merely to prove particular facts but to inform the other party about the existence and content of documents in the opponent's possession. This comprehensive approach aims to prevent surprises and ensure that all "cards are face up on the table."
In contrast, civil law jurisdictions, such as those in Continental Europe and the Middle East, adopt a more restrictive approach to disclosure. The focus is on the burden of proof, and document production is a mechanism to discharge this burden rather than a tool to inform the parties about particular facts of the case. Each party is expected to gather all necessary evidence before initiating proceeding, and the scope of document production is narrow.
In civil law proceedings, parties can only request documents that can be identified with sufficient precision and detail. The presiding officer plays a more active role in the evidentiary phase, intervening in the parties' requests and conducting the examination of evidence. This approach reflects the civil law tradition's emphasis on legal security, privacy, and the avoidance of fishing expeditions.
Given the stark differences between the two systems, international arbitration has developed converging practices to accommodate parties from both traditions. One of the most significant developments in this regard is the adoption of the International Bar Association Rules (the “IBA Rules”) on the Taking of Evidence in International Arbitration. These rules provide a balanced framework for document production, incorporating elements from both common law and civil law practices.
The IBA Rules allow for targeted document disclosure, requiring parties to submit a "Request to Produce" that describes the documents or categories of documents requested with specificity. The documents must be relevant to the case and material to its outcome. This approach aims to curtail fishing expeditions and manage the costs and burdens associated with document production.
Despite the efforts to harmonize practices, challenges remain in managing mixed arbitral panels and parties' expectations. Common law practitioners may find the limited scope of document production in international arbitration restrictive, while civil law practitioners may view the process as overly burdensome.
Arbitrators play a crucial role in navigating these differences. They must balance procedural neutrality with the parties' expectations, often influenced by their legal backgrounds. Arbitrators are encouraged to adopt a proactive case management approach, rigorously applying criteria of specificity, relevancy, and materiality to document requests. They may also rely on adverse inferences to sanction non-compliance and make cost-allocation decisions based on the parties' conduct during the document production phase.
Document production in international arbitration has both advantages and disadvantages. On the positive side, it can accelerate the resolution of factual issues, enhance the perception of legitimacy of the award, and level the playing field in cases with inherent information asymmetry. It also allows parties to better evaluate the strengths and weaknesses of their positions, potentially facilitating early settlement.
However, the process can be costly and time-consuming, often extending the procedural calendar by several months. The proliferation of electronic documentation has further exacerbated these challenges, increasing the volume of material to be reviewed. Additionally, document production can be fertile ground for procedural abuse, such as delaying tactics and the submission of irrelevant documents.
The differences in disclosure between civil and common law systems present significant challenges in international arbitration. However, the development of converging practices, such as the IBA Rules, has provided a framework for balancing these differences. By adopting a flexible and balanced approach, arbitrators and parties can navigate the complexities of document production, ensuring that the arbitration process remains efficient and fair.
In summary, while the common law approach emphasizes comprehensive disclosure to uncover the truth, the civil law approach focuses on the burden of proof with a more restrictive scope of document production. The evolving practices in international arbitration aim to bridge these differences, offering a middle ground that accommodates the procedural expectations of parties from both legal traditions.
For further information,please contact Noor Al Rayes and Bradley Price.
Published in October 2024
